Rajasthan High Court - Jaipur
Vinod Choudhary vs State Of Raj And Ors on 1 February, 2018
Author: Alok Sharma
Bench: Alok Sharma
HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT
JAIPUR
S.B. Civil Writ Petition No. 1083 / 2016
Vinod Choudhary Son of Shri Vardhi Chand Choudhary, by Caste
Jat, Aged About 24 Years, Gopal Nagar, Gram Panchayat Ladana,
Tehsil Phagi, District Jaipur (Rajasthan)
----Petitioner
Versus
1. State of Rajasthan Through the Chief Secretary, Government of
Rajasthan, Government Secretariat, Jaipur
2. Principal Secretary to Government, Rural Development &
Panchayati Raj Department, Government of Rajasthan,
Secretariat, Jaipur
3. State Election Commission Through Its Commissioner,
Panchayati Raj Building, Government Secretariat, Jaipur
4. Sukhpal Gurjar Son of Shri Laxman Gurjar, (returning
Candidate in General Elections of the Panchayat-2015 For Gram
Panchayat Ladana (present Sarpanch), Chari Ki Dhani, Gram
Panchayat Ladana, Tehsil Phagi, District Jaipur (Rajasthan)
----Respondents
_____________________________________________________ For Petitioner(s) : Mr. Saransh Saini For Respondent(s) : Mr. Ashish Kumar Sharma for Mr. Rajendra Prasad, AAG Mr. Nikhil Simlote Mr. Ravindra Paliwal _____________________________________________________ HON'BLE MR. JUSTICE ALOK SHARMA Judgment Date of Judgment :: 1st February, 2018 In this petition for a writ of quo warranto, the right of the respondent no. 4 - Returned Candidate (hereafter 'RC') to hold the post of Sarpanch of Gram Panchayat, Ladana, Tehsil Phagi, District Jaipur despite his election on the said post has been challenged on the ground that he was ineligible to contest the (2 of 11) [CW-1083/2016] election for reason of his not having the statutorily mandated minimum educational qualification of class VIII pass.
It has been submitted by Mr. Saransh Saini, counsel for the petitioner that Elections to the Gram Panchayat Ladhana, Tehsil Phagi, District Jaipur were held on 24.1.2015. The RC filed his nomination form despite his ineligibility to contest the election for the post of Sarpanch. That was on the basis of forged and fabricated documents. The nomination form filled in by the RC was not appropriately considered by the Returning Officer and in fact with his collusion the RC had been allowed to contest. Mr. Saransh Saini further submitted that in his declaration form under Clause-5, the RC claimed that he had passed Class-VIII from Tagore Vidhya Mandir Senior Secondary School, Bandikui, District Dausa (hereafter 'the school'), whereas earlier in the year 2010 when the RC had also contested the election for the post of Sarpanch, in his nomination form he did not disclose that purported educational qualification of having passed Class-VIII but only stated that he was 'literate'. That, he submitted was evident from the result sheet of Gram Panchayat, Ladhana, Tehsil Phagi, District Jaipur with regard to the elections held for the post of Sarpanch in the year 2010 (Annexure-3).
Mr. Saransh Saini further submitted that the minimum educational qualification statutorily prescribed for contesting election for the post of Sarpanch is class-VIII pass from a recognised Government school. Section 19(t) of the Act of 1994 so states. He submitted that as per Annexure-5 - the Transfer Certificate was belatedly purportedly issued by the school to RC on (3 of 11) [CW-1083/2016] 1.7.2005 while on his own case he was allegedly admitted to the said school in Class-VI on 1.7.1986 and left it after allegedly passing Class-VIII on 15.5.1990. Mr. Saransh Saini submitted that vide letter dated 3.5.1991 under the hand of the District Education Officer, Ist (Annexure-6), permanent recognition to the school in issue was given w.e.f. 1.7.1991 and permission to run class-VI obtained only commencing Academic Session 1991-92. In this view of the uncontrovertible public document on record it is pellucid, Mr. Saransh Saini submitted that in the years 1986-87, 1987-88 and 1988-89, when the RC claims to have studied in Class-VI, VII and VIII in the school in issue it was not even recognized to admit students to the said classes.
Mr. Saransh Saini further pointed out that one Ghasi Ram as also the petitioner both filed criminal complaints against the RC for offences under Sections 420, 467, 468, 471 and 120B IPC under Section 156(3) of the Criminal Procedure Act, 1973 which were sent to the concerned Police Station for investigation. FIR No.134/2015 was registered and after investigation, the police submitted a charge sheet no. 206/2015 against the RC on 20.10.2015. It has also been submitted that against the administration of the school, several complaints were filed for issuing forged and fabricated marks sheets and certificates. In FIR No.111/2015 registered at Police Station, Bandikui for the offence under Sections 420, 467 , 468 and 471 IPC, Manager of the said school Shiv Prasad Tiwari and another, one Dalchand Raiger were arrested and during the course of investigation, the Investigation Officer recovered forged SR Register, Transfer Certificates, forged (4 of 11) [CW-1083/2016] seals as also the diaries from them.
Mr. Saransh Saini emphatically submitted that in view of the incontrovertible facts based on public records against the RC, he was clearly ineligible to contest the election to the post of Sarpanch in 2015, yet so did on suppression of material facts and assertion of false hood in his nomination form and supporting affidavit. Having so contested and won, the RC, only remains as an usurper of public office and cannot in the circumstances be allowed to continue as Sarpanch. It was submitted that the election of RC as Sarpanch, Gram Panchayat Ladhana, Tehsil Phagi, District Jaipur in the circumstances is of no event for reason of his underlying ineligibility and he cannot be allowed to perpetuate fraud on law and constitution in holding public office. And hence this petition for a writ of quo warranto be allowed and direction be issued to the RC to desist from holding and occupying public office / post of Sarpanch and the state government be simultaneously directed to restrain him from so doing.
Per contra, Mr. Ravindra Paliwal, counsel for the RC submitted that as per Section 43 of the Rajasthan Panchayati Raj Act, only an aggrieved person who has contested the election can lay a challenge to the election by an election petition duly filed and within the stipulated period. A writ of quo warranto is no substitute. The instant writ petition is not maintainable. So far as FIR No. 134/2015 registered against the RC for the offence under Sections 420, 467, 468 and 471 IPC is concerned, Mr. Ravindra Paliwal contended that the RC has been granted anticipatory bail by this Court.
(5 of 11) [CW-1083/2016] Mr. Ashish Kumar Sharma for Mr. Rajendra Prasad, AAG and Mr. Nikhil Simlote, Counsel for respondent no.3 submitted that the RC was allowed to contest the election to the post of Sarpanch on the basis of information furnished by him in his nomination form to the returning officer. The State Government has no power subsequent to an election to remove the RC from the said post for reason of a pre election disqualification even if made out and it could be so done only in a properly constituted election petition under the Act of 1994 readwith the Rajasthan Panchayat (Election) Rules, 1994 (hereafter 'the Rules of 1994') or in a writ of quo warranto where no real dispute as to alleged ineligibility was made out.
In rejoinder, Mr. Saransh Saini submitted that a writ of quo-warranto can and should be issued if the court from incontrovertible material on record constituted of undisputed documents going to the root of the eligibility of a returned candidate, is satisfied that the RC was not eligible to hold public office / post despite his election and was thus a usurper thereof. Reliance was placed on the judgment of the Apex Court in the case of K. Venkatachalam Versus A. Swamickan and another (1999) 4 Supreme Court Cases page 526, Larger Bench judgment of this Court in the case of Sameera Bano Versus State of Rajasthan reported in RLW 2007 (2) Raj 1674 as also this Court's judgment in the case of Sahi Ram Versus The State of Rajasthan & Ors. (S.B. Civil Writ Petition No. 16717/2015; decided on 31.5.2017).
(6 of 11) [CW-1083/2016] Heard. Considered.
In the nomination form submitted by the RC on 23.1.2015 (Annexure-2) for contesting election for the post of Sarpanch he claimed class-VIIIth pass from the school, whereas Annexure-3, result sheet of elections for the post of Sarpanch , Gram Panchayat Ladana, Tehsil Phagi, District Jaipur in the year 2010 indicates on information supplied by the RC himself that he was only 'literate'. Further Transfer Certificate (Annexure-5) issued to the RC records that he was admitted to Class-VI at the school in issue on 1.7.1986 and left the school on 15.5.1990 after purportedly passing Class-VIII. As against that, the letter dated 3.5.1991 (Annexure-6) issued by District Education, Jaipur Ist, clearly states that the said school was granted permanent recognition only w.e.f. 1.7.1991 and the permission to run Class- VI was from the academic session 1991-92. Neither Annexure-3 nor Annexure-6 have been denied by the RC in his reply to the writ petition. In this view of the matter in the academic sessions 1986-87, 1987-88, 1988-89 and 1989-90 during which the RC claims to have studied in the class-VI, VII and VIII at the school in issue, it was not recognized by the State Government. Admissions to Class-VI in the school lawfully could only be in the academic session 1991-92 subsequent to 15.5.1990 when RC claims to have passed Class-VIII.
However it would be relevant to first address the maintainability of this petition in substance seeking a writ of quo warranto as that objection has been vociferously raised by the counsel for RC. In Kurapati Maria Das Versus Dr. Ambedkar Sewa (7 of 11) [CW-1083/2016] Samajan And Others (2009) 7 Supreme Court Cases 387, the Apex Court required the High Court to exercise restrain in invoking its jurisdiction under Article 226 of the Constitution of India and/or issue a writ of quo warranto against the election of RC as the remedy of an aggrieved party against an election was within the statute under which the election in issue was held, read with Article 329 (b) of the Constitution of India. The Apex Court yet despite noticing, however did not overrule its earlier judgment in the case of K.Venkatachalam Versus A. Swamickan And Another (1999) 4 Supreme Court Cases 526, where a RC who had contested an election, by resort to fraud, despite not being eligible therefor was subjected to a writ of quo warranto against him. The Apex Court in the case of K.Venkatachalam Versus A. Swamickan And Another (supra) held that resort to the extraordinary jurisdiction of the Court under Article 226 of the Constitution of India cannot be excluded vis-a-vis, a candidate elected to public office without requisite eligibility as he could not be allowed to continue and perpetuate fraud on law and the Constitution. In K.Venkatachalam Versus A. Swamickan And Another (supra) the RC was not on the voters list of the constituency and yet contested and won therefrom. The law laid down in K.Venkatachalam Versus A. Swamickan And Another (supra) expressing the court's determination to prevent fraud on the law and Constitution by a usurper of public office therefore still holds good despite Kurapati Maria Das Versus Dr. Ambedkar Sewa Samajan And Others (supra). What the court while exercising its power to issue a writ of quo warranto against an elected (8 of 11) [CW-1083/2016] representative lacking in eligibility has however to see and ensure is that there is no bonafide dispute as to the RC's alleged ineligibility. This in my considered view is the obtaining legal position.
I am of the considered view that for this Court to eschew the exercise of its jurisdiction to issue a writ of quo warranto against a person evidently ineligible from the facts before it for holding public office with reference to statutorily prescribed prescriptions/ prohibitions, it has to be satisfied that a real and bonafide dispute as to the alleged ineligibility of the holder of public office obtains before it. The Apex Court in the case of M/S Iba Health (I) P. Ltd. Versus M/S Info-Drive Systems Sdn.Bhd, (2010) 10 SCC 553 albeit in another context, has held that for a dispute to be made out, it should be found to be genuine, bonafide, on substantial ground/s and not merely spurious, illusory, speculative and misconceived founded only on a bald contra assertion. Thus it is pellucid that a bald assertion of eligibility without specific denial of apparently clinching public documents not post but ante litem motem cannot entail a dispute or obstruct the Court's jurisdiction to issue a writ of quo warranto. A real and bonafide dispute has to be set up for a writ of quo warranto not being maintainable.
I cannot however find any real and bonafide dispute in the present petition as to the RC's ineligibility to contest the election for the post of Sarpanch of Gram Panchayat, Ladhana, Tehsil Phagi, District Jaipur. His ineligibility is made out from public document of longstanding which is the letter dated 3.5.1991 (9 of 11) [CW-1083/2016] issued by District Education Officer, Ist from which it is apparent that the said school was granted recognition to run Class-VI from the academic session 1991-92 and not prior thereto. As also his own nomination form in 2010 when he also contested the election to the post of Sarpanch and claimed only to be a literate. No denial of documents relied upon by the petitioner i.e. Annexure-3 and 6 has also been made by the RC in his reply to the writ petition. The RC yet claims to have studied in Class-VI through Class-VIII between 1.7.1986 and to 15.5.1990 and passed Class VIII.
I am of the considered view that the RC's baseless defence as to his ineligibility not having passed Class-VIII from a school recognized by the State Government or otherwise is thus of no avail. For a dispute of fact to obtain it necessarily has to be based on a substantial and reasonable defence, not sham, or spurious or a mechanical stone walling on assertion of fact contrary to one's own admitted fact recorded in a public document. No real dispute as to his ineligibility is made out to warrant eschewing of the equitable extraordinary jurisdiction of this Court in public interest to issue a writ of quo-warranto. I am not inclined in the circumstances to entertain the argument of Mr. Ravindra Paliwal, counsel for the RC that this writ of quo warrant is not maintainable. Contrarily, I am of the considered view that there is more than sufficient uncontroverted clinching material on the record of this Court constituted by the RC's admission (A-3) and public documents (A-6) to reasonably conclude that the RC was not class-VIII pass from a government recognized school and (10 of 11) [CW-1083/2016] hence ineligible to contest the election for the post of Sarpanch. And despite being ineligible to contest the election to the post of Sarpanch of Gram Panchayat, Ladhana held in 2015, he yet so did on false assertion in his nomination form and supporting affidavit and won.
No doubt the Apex Court has held in Kurapati Maria Das Versus Dr. Ambedkar Sewa Samajan And Others (supra) that in a writ of quo-warrant should not replace the statutory remedy of the election petition, yet it is not conceivable that the Court's dictum was intended to be a fit all proposition of law even in petitions for quo warranto based on material such as incontrovertible public documents pre litem potem. Besides, as earlier recorded in this judgment, in Kurapati Maria Das Versus Dr. Ambedkar Sewa Samajan And Others (supra), the Apex Court did not overrule the judgment of a Coordinate Bench in the case of K.Venkatachalam Versus A. Swamickan And Another (supra) holding that where underlying fraud in contesting an election under a statute was made out from un-impeachable evidence of sterling worth, a writ of quo-warranto could issue against the beneficiary of fraud restraining him from holding the public office.
Contesting an election is neither a fundamental nor a common law right but a statutory one. To avail such statutory right the conditions of eligibility set out in the governing statute have to be fulfilled and when a right to contest an election under a statute is asserted, the conditions prescribed thereunder attach with full vigor. No deviation from the statute under which the election is contested can be visualized. In this view of the matter, (11 of 11) [CW-1083/2016] one cannot hold public office even if elected if such elected person suffers from the very inception from lack of statutorily prescribed eligibility.
Consequently, I would allow this petition and declare that the RC is a usurper of a public office having contested the election on the strength of false assertion/ documents and suppression of true facts in his nomination form to the post of Sarpanch Gram Panchayat Ladhana, Tehsil Pahgi, District Jaipur held in 2015 despite his ineligibility with reference to statutorily prescribed educational qualification.
It is declared that the RC is thus not entitled to hold the post of Sarpanch of Gram Panchayat Ladhana, Tehsil Phagi, District Jaipur and he be removed therefrom forthwith. The respondents are accordingly directed.
(ALOK SHARMA)J. Dk